Law: Marijuana-law practices expand as industry grows

Hilary Bricken’s medical marijuana legal practice has grown to about 60 clients, from 40, in the past six months. Each day she gets new calls from people who want guidance on starting a marijuana operation that is illegal under federal law.

Washington state’s complicated medical marijuana laws have sparked a small, but growing, field of attorneys like Bricken. These attorneys aren’t focused only on criminal defense. They’re also talking to growers and vendors who need advice on how to negotiate contracts, leases and other aspects of operating a nonprofit enterprise under the shadow of federal antidrug laws.

“(We) counsel people on how to stay in compliance with state law,” said Bricken, who works at Harris & Moure PLLC law firm, in Seattle. “We make it very clear … that what they’re doing is a federal crime.”

Medical marijuana is sold through “community gardens” set up as nonprofit cooperatives, which were legalized last year. The website legalmarijuanadispensary.com lists 90 such cooperatives in Seattle alone. But when Gov. Chris Gregoire signed the bill permitting community gardens, she vetoed provisions that would have created a medical marijuana industry with legal for-profit dispensaries.

Confusion is only expected to grow as attorneys and their clients await the outcome of Initiative 502, which would legalize marijuana for recreational use if Washington voters approve it on Nov. 6. The initiative has divided medical dispensary operators and pro-marijuana activists for a number of reasons — not least of which is that many expect the federal government to act swiftly in opposition if the measure does pass.

Passage would make Washington one of the first states to legalize and tax marijuana for recreational use. Petitioners turned in 278,000 signatures, and a June survey by Public Policy Polling found 50 percent supported the measure, 37 percent opposed it and the rest were undecided.

Attorneys advising medical marijuana vendors hesitate to speculate on whether their law practices would expand or contract if I-502 passes. The confusion has the state bar association hosting an Aug. 29 continuing legal education course on marijuana law in Washington. On the agenda: how laws differ locally (different cities have adopted their own policies on medical marijuana with varying degrees of tolerance), and the contradictions between state and federal law. The course also will cover how to ethically advise clients about marijuana.

Attorneys serving medical marijuana cooperatives have their hands full dealing with the state’s murky laws. For example, cooperatives that serve medical marijuana patients are supposed to serve only 10 patients and produce 45 plants at a time; a common assumption is that many cooperatives allow people to “join” during brief visits to purchase marijuana, then “un-join” upon departure.

This tactic can provide enough customers to remain operational, but some attorneys argue the practice brings an inherent risk to the cooperatives and the attorneys who represent them.

“How do you advise an illegal business?” asked Jeffrey Steinborn, a Seattle attorney and longtime marijuana activist who will speak at the bar association seminar. “I work with a lot of people, and I give them real advice. And if they follow my advice, they probably don’t open dispensaries. And if they do so, they do so contrary to my advice.”

Steinborn said attorneys who advise cooperatives are putting themselves at risk.

These lawyers regularly hear from potential clients who want to be able to legally operate marijuana dispensaries. And they don’t take the responsibility lightly.

“My big concern is, ethically, what can I do? Because none of this is legal under federal law,” said Kurt Boehl, a Seattle-based attorney who has consulted for about 100 new medical marijuana operations. “Ethically, what is my duty, my obligation to my clients?”

Boehl, principal in his own law firm, noted that Washington state doesn’t have any published ethics opinions on attorneys who represent cooperatives, but he has looked to one from New Mexico for guidance.

“As long as we advise the clients from the very start that none of this is legal under federal law, and (that) they run the risk of federal prosecution for possessing even a joint, (then) we have an ethical duty to advise them on what the state law is and how that’s applied,” said Boehl, who will also be speaking at the marijuana law seminar.

Boehl and Bricken said they make sure their clients are aware of the risks under federal law.

While Bricken argues her clients are entitled to the same rights and legal protections as other businesses, she is concerned that they could miss out on court access “because of the controversial products that they’re working with.”

“My biggest concern of all is ... that they’re not going to have equal access to the courts,” she said. “That’s really what, as an attorney, what kind of keeps me up at night. Because if my clients can’t have their lending agreements honored, (if) they can’t have contracts between themselves honored, it really stymies the legitimacy of the businesses.”